Thursday, December 11, 2014

George Will and I agree on practically nothing (including a few things in this column, like his praise of "Broken Windows" policing). But his larger point, on the over-criminalization of American society, and why Eric Garner died, not just because of brutal law enforcement, but because of inept and slipshod law making, is spot on.

Overcriminalization has become a national plague. And when more and
more behaviors are criminalized, there are more and more occasions for
police, who embody the state’s monopoly on legitimate violence, and who
fully participate in humanity’s flaws, to make mistakes.

Harvey Silverglate, a civil liberties attorney, titled his 2009 book “Three Felonies a Day” to indicate how easily we can fall afoul of the United States’ metastasizing body of criminal laws. Professor Douglas Husak
of Rutgers University says that approximately 70 percent of American
adults have, usually unwittingly, committed a crime for which they could
be imprisoned. In his 2008 book, “Overcriminalization: The Limits of the Criminal Law,” Husak says that more than half of the 3,000 federal
crimes — itself a dismaying number — are found not in the Federal
Criminal Code but in numerous other statutes. And, by one estimate, at
least 300,000 federal regulations can be enforced by agencies wielding
criminal punishments. Citing Husak, professor Stephen L. Carter of the Yale Law School, like a hammer driving a nail head flush to a board, forcefully underscores the moral of this story:

Society
needs laws; therefore it needs law enforcement. But
“overcriminalization matters” because “making an offense criminal also
means that the police will go armed to enforce it.” The job of the
police “is to carry out the legislative will.” But today’s political
system takes “bizarre delight in creating new crimes” for enforcement.
And “every act of enforcement includes the possibility of violence.”

That's the defacto assumption of law enforcement. It doesn't matter if you're a gun-wielding lunatic running through the streets, or a 90 year old grandmother being pulled over on a routine traffic stop. EVERY encounter includes the possibility of violence.

Even busting someone for selling (or smoking) cigarettes.

Carter continues: “It’s unlikely that the New York Legislature, in
creating the crime of selling untaxed cigarettes, imagined that anyone
would die for violating it. But a wise legislator would give the matter
some thought before creating a crime. Officials who fail to take into
account the obvious fact that the laws they’re so eager to pass will be
enforced at the point of a gun cannot fairly be described as public
servants.”

Most
of today’s 2.2 million prisoners will be coming back to their
neighborhoods, and few of them will have been improved by the experience
of incarceration. This will be true even if they did not experience the
often deranging use of prolonged solitary confinement, which violates
the Eighth Amendment’s ban on “cruel and unusual punishments” and is, to
put things plainly, torture.

The scandal of mass incarceration
is partly produced by the frivolity of the political class, which uses
the multiplication of criminal offenses as a form of moral
exhibitionism. This, like Eric Garner’s death, is a pebble in the
mountain of evidence that American government is increasingly
characterized by an ugly and sometimes lethal irresponsibility.

We need not only responsible sentencing reform, but we need to decriminalize a plethora of behaviors that are not a threat to anyone in society. The "metastasizing body of criminal laws" is the government (and thus enforcement) run amok.

The Garner case is complicated and shows several things: law enforcement on militarized steroids, a DA system that is broken (DA's should never, under any circumstances, be allowed to decide the fate of a police officer charged with a crime due to conflict of interest), and the like, but frankly, the libertarians have this one right. If you're not doing something that threatens another person's right to life, liberty or property, it should not be illegal, and the police should not be involved in the least.

And that includes even something like selling un-taxed cigarettes, which is a direct result of the anti-smoking zealots and their creation of a black market for cheaper smokes via higher taxes. When we have police departments with "Cigarette Strike Forces", you know we've gone completely berserk.

Eric Garner died just as much at the hands of the anti-smoking fascists in this country as he did in that illegal chokehold.

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